ISP Received Subpoena for My Identity, Motions and Objections Filed

[ManOfManyQuestions]

My question involves court procedures for the state of: Virginia (Circuit Court)

Hi, in the Circuit Court of Virginia an Intentional Tort case was filed against several John Doe's based on comments made on the internet.

One John Doe received a subpoena that was served on her ISP.
Upon receipt she contacted her local attorney. Her attorney told her, he could not help as he was not licensed in that state. The party who's identity is requested does not live in Virginia, nor have any ties to Virginia.
At that time she contacted a Virginia attorney who wanted several thousand dollars and said it was a 60/40 shot to get the subpoena quashed. Several other attorney's wanted similar money and offered no assurances.

At this time she decided to proceed on her own. With some intense research and the information sent with the subpoena, she filed a motion to quash citing jurisdictional conflicts and a motion for protective order. These were sent to the court, the ISP, and the plaintiff's attorney. The judge denied the motions and issued an order stating the signature block was improperly completed(only signed John Doe). At this time she refiled "amended" motions with her ISP and an email address, as well as an email address in which she could be contacted. She also submitted a written objection to the court, which was part of the subpoena package from Virginia.

These were all received by the clerk and sent up to the judge. I assume the judge reviewed these. The file was then sent back down to the clerk, with no order or any other notes, etc.

It sat this way for several weeks. Then the plaintiff's attorney filed a motion to compel with the subpoena, a brief, and an order requesting the judge to sign. This was filed with the clerk and sent to the judge, who again I assume reviewed, and then sent the file back to the clerk with no ruling or order.

What is happening? Should she be doing anything?

Any help would be appreciated!!!

Thanks.

Someone suggested that the judge may want a hearing on these motions. If this is the case, does someone have to represent her, because appearing herself is not possible because of the travel and would void the John Doe status. Hiring a lawyer may be a burden financially.

Thanks.

[cmre3456]

OK, Here we go again, LOL. Just finished with a thread which went on forever because the laws are not well known and it was complicated.

Yes, it's usual to boldly request a hearing on a motion or answer to motion if you want one. Then you pester the clerk to be sure one is scheduled. The clerk notifies the parties of the time and place of the hearing.

This case is so easy for someone who understands it, and impossible for someone who doesn't. I don't mean the law, I mean the internet. I'm not a lawyer, but I'm a Microsoft Certified Systems (world wide internet, email, etc.) Engineer.

I don't know nearly enough about what happened to speculate, but she needs a good lawyer who KNOWS how the internet works, or who has a sharp IT person to consult with.

You have here the possible option of totally ignoring it, losing by default, and then making them prove who did it. Right now it's John Doe which is what is used when they don't know who the person is. They are looking for the person who posted it and want an IP address and the person attached to it.

Every single node (anything with an IP address in layman's terms) on the internet has a unique IP address, and ISPs log who had that IP address at any moment in time. BUT a router is fully a computer and a node on the internet and it's all the ISP sees. Internal IP address assigned by the router can't be seen on the web and not by the ISP. The block of internal IP addresses set aside for that purpose aren't even internet routable. The internet would just destroy the packets for not recognizing them or their source or destination.

That means that if there was a router, it will trace only to a building and a router. it will NOT prove which user behind that router did the posting. So, if it's a family router with more than one computer hooked to it, they can't prove which person did the posting. Also, if people share a computer, nothing can be proved. This is of course true in a work environment, unless IT logs internal IP's or assigns static rather than dynamic IPs.

Another thing is that the posting may have been made from a Starbucks, and it will trace only to Starbuck's wireless router, period. In any event, unless someone lives alone and no one else uses the computer, and especially if there's no router, it could be traced to that computer. Computers have the ability to do the work of a router especially for a single machine.

Mum and silent might completely befuddle them. They trace to a router at an address, but no one seems to know, or alternatively says, which computer or user made the post.

So, they get a court award via default, and then the losing party comes back in with the argument that yes, they "won" but they still can't prove who they won against. The losing party may even still be John Doe.

That's just one scenario which might or might not work, depending on the topology (design) of the network used.

Everyone should have a router even if they are alone. As an aside, hackers waste a lot of time trying to breach a router which looks for all the world to be any other computer on the web. The router blocks hackers and ISPs from seeing the personal computers beyond it. It's the best personal firewall in the world.

Next we'd need to know the type of thing said, the position of the person "defamed," and whether it was anonymous and the target open to speculation only. Defamation cases tend to bring small awards unless real monetary damages were incurred such as the loss of a job etc. Also it's an uphill battle for a public figure or a notorious person to sustain a defamation suit. We have 1st amendment rights to speak out about public figures, so the standards are higher to prevail and get an award.

Yes, there may be affirmative defenses including jurisdiction but we can't tell from here. Also, there is the question of whether a change of venue could be required. Often the suit must be filed in the state and county where the alleged tort occurred but we don't know enough here.

At my house, I'd ignore it. We have three people with 5 computers including laptops behind a router. There's no way of proving who posted anything unless someone speaks up. They would never get past their John Doe status.

I CAN'T advise to have a tech quickly and securely delete all browsing history because that could be destroying evidence. However our computers have software which does it every 24 hours as a matter of course. I don't need cookies retained because I have software which stores my user/pass for every account in encrypted form. I unlock that with one master password every time I log on, and it fills them in for me. Gee... what was that password... Hmm.....

One of the BEST answers when you're being grilled is "I don't recall." No one can prove that is incorrect, nor can they choke you until you recall. You've stumped them. Even if I recalled it yesterday and will again tomorrow, gee, right now I can't recall.

Now, please read this and compare it to your friend's situation and tell as much as you can about the network or other that the posting was done from, (router, no router, multiple or one computer etc.) and which states the posting was done from, which state the suit was filed in, which state the ISP operates from, and anything else which would help us understand jurisdiction and anonymity due to location or router or lack of anonymity of the plaintiff.

[ManOfManyQuestions]

I'm confident a hearing needs to be scheduled on the motions/objection. The trouble is how does she schedule a hearing when she is pro se and John doe? She obviously cannot appear in court, aside from the fact the court is a thousand miles from home.

What is the right move at this stage?

[cmre3456]

Why are you confident? Has jurisdiction been researched and established? Just maybe but not certainly, jurisdiction is where the ISP is located or where the posting took place or is named in an agreement of some kind. Maybe it is where the defendant lives.

That is job one. Just don't overlook deadlines.

Next, pay close attention to what I said about routers and computers behind them. I guarantee you that they would never prove I posted something. They can suspect all they want, but that's not admissible evidence. They might even trace it to my house but that doesn't prove anything.

My first instincts are to research jurisdiction. If they have it wrong, they are out of luck. My next is to research the topology of my network to see if they could prove which computer did the posting, and which user was at the keyboard.

Now I have some affirmative defenses if needed.

The last thing I would ever do is give up the real name of John Doe voluntarily.

She needs an attorney. She'll screw up and give up information they need, but which she's not required to volunteer. Even filing a motion can give up information.

"I don't recall."

[ManOfManyQuestions]

You seem to be a step past us. Long story short they have her ip through other methods. That is how they knew who to subpeona. The plaintiff and the isp are both in Virginia. The current John doe however has never been to Virginia.

The.motions and objections are filed. But never ruled on. My understanding is a hearing needs to occur. Possibly she should have sent an order to quash along with her motion to quash?

How can a hearing take place with a John doe defendant who is pro se? Finding an attorney has been a challenge because of the distance as well. These guys all want you to pay a fee just to speak to them...

[cmre3456]

I'm finished with this. Having the IP means nothing. They have to trace it to a place and then prove who used it.

Mostly I'm finished because I can't help. If a response has been made, it's possible that all advantage has been lost. I don't know because I haven't seen the response. I don't know if a response should have been filed.

If you want a hearing, you usually have to request it prominently.

It's not helpful is she goes ahead with the case without a good attorney or at least some alternative ideas.

Of course an attorney wants a retainer. Without a retainer/attorney your friend will probably lose. Which is better?

One of the most common errors people make whether pulled over at a traffic stop, arrested, or sued, is to say too much. That may already have been done. I don't know.

[Mr. Knowitall]

The.motions and objections are filed. But never ruled on. My understanding is a hearing needs to occur.

That's typically the case - it's normally up to the party who submits a motion to schedule it for hearing on an available motion date and to notice the hearing to the other parties.

I'm confident a hearing needs to be scheduled on the motions/objection. The trouble is how does she schedule a hearing when she is pro se and John doe?

If she doesn't want her identity known, she would need to do so through a lawyer.

Finding an attorney has been a challenge because of the distance as well. These guys all want you to pay a fee just to speak to them...

Yes, when you hire somebody to work for you they actually get paid for that work. Shocking, isn't it....

You can investigate whether a group such as the ACLU or EFF finds the issues to be of sufficient interest to provide representation.

She obviously cannot appear in court, aside from the fact the court is a thousand miles from home.

She can appear in court to represent herself, or she can have a lawyer appear on her behalf. If she appears, it's difficult to imagine that she will remain anonymous.

Possibly she should have sent an order to quash along with her motion to quash?

There's nothing wrong with submitting a proposed order along with a motion, although the judge's ruling may require that it be amended or that a different proposed order be prepared and submitted.

[cmre3456]

I'm not an attorney, but I've been through a bunch of these, not always for defamation. Our best strategy which always worked was to keep the plaintiff from proving who made the posting(s) and to remain the anonymous John Doe.

The defendant may already have given that up by personally answering to the court if I read prior posting correctly. Not only may she have given that up, but she may have saved the plaintiff a lot of time and money tracing the IP. It's possible the IP couldn't have been traced with filings in different states. If it could be traced, it would have been expensive. They'd have to pay the ISPs or internet servers on each hop for their time in going back through logs.

The problem here is that we are getting the questions after action has been taken, and more action considered. You simply don't answer complaints or motions or appear in your own name if you are a John Doe target. The plaintiff will spend a lot of time and money tracing John Doe and come up empty unless the defendant gives up the information.

This is a classic case where a defendant can try to represent herself, and hand the case to the plaintiff on a silver platter.

You seem to be a step past us. Long story short they have her ip through other methods. That is how they knew who to subpeona. The plaintiff and the isp are both in Virginia. The current John doe however has never been to Virginia.

If they knew who to subpoena, they have a lot more than an IP. Still, they used John Doe so they didn't know the person. You can't sue an IP. You have to serve a person or entity with specificity. You don't give up the ID of John Doe, period. This is where they lose. They can't prove who made the post using an IP, and the person who made the post, if pressed, doesn't recall making it.

Motions for dismissal are made based on a failure to identify John Doe.

My fear is that she gave up her identity by answering to the court. I further fear that she will do it again by "appearing" at a hearing if only by phone.

Please get this. She might lose the case on the merits if they can ID her. If they can't ID her, the merits are irrelevant and never become relevant. Also, who cares if they go so far as to get a judgment against John Doe if they never know who John Doe is?

[ManOfManyQuestions]

Guy's her ip was gathered in a sting, where the plaintiff had a cyber investigator and an email with a link. That link was private and only the emailed party could access.

That is how they knew who to subpoena.


You have helped some but the big question. How can a pro se defendant have a hearing on a motion without revealing who John doe is?

Can the court have a hearing and use only the motion in support of the defendant?

If she notices a hearing and doesn't participate does she auto lose?

[aaron]

You should expect that if you notice your motion, the court will want both parties to check in before calling the matter. You can check with the court to see if they'll entertain argument on the motion in your absence but, even if that is allowed, I don't think it would bode well for you to allow opposing counsel to be the only person who argues.